PROBATE: What Everyone Should Know, Part 1

What Happens to Property After Death? 

You don’t have to be wealthy to have an estate. When someone dies, the property they own—whether it is real property or personal property—is said to be their “estate”. A Personal Representative will be appointed by the Court to administer the estate. In New York, that court is the Surrogate’s Court and there is one in each county. The proper County for filing is the County the decedent called their domicile. However, if the decedent owned real estate elsewhere, for example, a Florida condominium, a second procedure, called ancillary probate, will have to be commenced in that state as well. Most states have a streamlined process for ancillary probate.

If the decedent dies with a valid Will, he is said to have died Testate. The Executor designated by the decedent in the Will is appointed the Personal Representative, unless ineligible. If the decedent dies without a Will, he is said to have died Intestate. In that case, an Administrator will be chosen by the Court to act as Personal Representative. The laws of intestacy determine who is eligible to be an administrator and the order in which they may be appointed.

What are the Duties of the Personal Representative? How Will They Divide the Assets?

The principle duties of the Personal Representative are collecting and inventorying assets of the decedent, managing the assets during estate administration, paying the claims of creditors and tax authorities, determining and clearing title to estate assets, and distributing the assets.

If a person dies with a Will, the estate will be distributed according to the decedent’s wishes. If a person dies without a Will, Surrogate’s Court will direct that the assets be distributed according to the State Law of Intestate Succession, which may or may not be what the decedent would have liked. For instance, when a decedent is survived by a spouse and children, intestacy provides that the spouse receives $50,000 plus half of the rest of the estate. The children, even if they are minors, receive the other 50% of the estate. This sets up the possibility that a surviving spouse is left with insufficient funds to raise the surviving children.

Does the Personal Representative Get Paid? 

The Personal Representative is entitled to a commission for serving. The amount of compensation is set by State law and is based on a percentage of the estate that is probated. The Personal Representative’s commission is paid from the estate and only with prior Court approval and/or the consent of all of the beneficiaries.